The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge Page 2
Defendants William M. Mercer Investment Consulting, Inc and Mercer
Consulting Group, Inc. (collectively,"Mercer") have moved for summary
judgment, pursuant to Fed.R.Civ.P. 56, to dismiss the complaint of
plaintiff Iqbal A. Pasha's ("Pasha"). Additionally, Mercer has moved to
strike Pasha's sur-reply. For the reasons set forth below, Mercer's
motion to strike is denied, and its motion for summary judgment is
Pasha commenced this action against defendants on October 31, 2000,
alleging that defendants refused to hire him as an investment consultant
based on his national origin (Pakistani) and age (then fifty-four).
Discovery closed on May 27, 2003. The instant motion was marked fully
submitted on October 8, 2003. On October 16, 2003, Mercer moved to strike
The facts are set forth based upon the Local Rule 56.1 statements of
the parties and supporting declarations.
William M. Mercer Investment Consulting, Inc. is a large provider of
investment consulting services to the fiduciaries of
pension funds, foundations, endowments, and other institutional
funds. Mercer Consulting Group, Inc., now named Mercer, Inc., is the
ultimate parent company within the consulting group.
Pasha is a Fellow of the Institute of Actuaries in London, England and
a Chartered Financial Analyst from the Association for Investment
Management & Research in Virginia. Pasha has also served as a Vice
President of Banque Indosuez in Paris.
In or about December 1996, Pasha contacted his professional
acquaintance, Peter Coster ("Coster"), the President and CEO of Mercer
Consulting Group, Inc., seeking employment opportunities. Coster
recommended Pasha to Mercer three times. On the first two occasions, no
suitable jobs were available, but on the third occasion, Pasha was
interviewed for an investment consultant position and for a research
On or about December 17, 1999, Pasha met with Mary Sue Dickinson
("Dickinson"), the northeast regional leader of Mercer's investment
consulting practice, and with Ed Heilbron ("Heilbron") in Mercer's
Stamford office. On or about December 24, 1999, Pasha met with Ashgar
Alam ("Alam"), the national practice leader of Mercer's investment
consulting practice. Alam then suggested that Pasha interview with
members of Mercer's practice's research group in Chicago. On January 14,
2000, Pasha interviewed with four
principals in the firm's Chicago research group: Jim Hiner
("Hiner"), Brad Blalock ("Blalock"), Brian Collins ("Collins"), and Louis
Finney ("Finney"). Soon thereafter, Alam left Pasha a voice mail,
advising him that Mercer was unable to offer him a position with the
By letter dated January 24, 2000, Pasha attempted to appeal this
decision to Coster. Pasha claimed that his more extensive knowledge
threatened three of his interviewers in Chicago. Following a discussion
between Coster and Alam, Coster sent Pasha a letter on February 9, 2000
supporting Mercer management's decision and wishing him well in his
Pasha is of Pakistani national origin, and, at the time he interviewed
with defendants, he was 54 years of age. Alam is also of Pakistani
origin. Alam was born in Sargodha, Punjab in Pakistan, while Pahsa was
born in Hyderabad, India and grew up in Karachi, Sind in Pakistan.
Mercer hired 50 investment consultants during 1997 through 1999, six of
whom were over the age of 40, including one who was over the age of 50.
Mercer hired 16 investment consultants in the year 2000, three of whom
were at or above the age of 40 aged 41, 41, and 40.
According to Pasha, during the course of the interview, Alam "talked
about `recruiting young people' from the actuarial side of the company's
business to become Investment Consultants." (Compl. ¶ 8.) Pasha also
alleges that Alam made reference to his own age by talking about a mutual
acquaintance in Pakistan, a classmate of his who was 42-years old. At his
deposition, Pasha further testified that during his meeting with Hiner in
Chicago, "when we were walking out of the room, he said to me something,
something, I don't recall, we should be thinking of retiring at our age."
(Pasha's Dep. at 220.)
On or about August 4, 2000, Pasha filed a Charge of Discrimination with
the Equal Employment Opportunity Commission ("EEOC"). The following
month, the EEOC notified Pasha that it concluded its inquiry and that
"[t]he evidence . . . does not indicate that a violation has
occurred," and further that it does "not appear likely that additional
information [would] result in our finding a violation." A follow-up
letter, dated August 6, 2003, explained:
Although the file for the above-captioned charge
was lost during the destruction of EEOC's office
at 7 World Trade Center on September 11, 2001, the
September 8, 2000 letter indicates that our
determination was made solely upon an evaluation
of your charge. It does not reflect an assessment
of the facts or evidence from both sides.
The EEOC issued its Notice of Right to Sue on or about September
Pasha's request to submit a sur-reply was received on October 6, 2003.
Pasha based his request on new evidence submitted by Mercer, not
previously disclosed in discovery. Pasha referred to affidavits submitted
by Dickinson and Allan Vernick, the Senior Human Resources Manager &
Principal, and to new statistical analysis. Pasha claims that the
Dickinson affidavit, in particular, should have been submitted during
discovery, or at the very least, during Mercer's opening motion for
summary judgment. Discovery ended on May 27, 2003, and this affidavit was
not submitted till August 19, 2003. In his sur-reply, Pasha argues that
Dickinson's testimony should, therefore, be disregarded.*fn1 Pasha
delivered his sur-reply before the summary judgment motion's return date
of October 8, 2003.
By letter dated October 16, 2003, Mercer moved to strike Pasha's
sur-reply on the ground that neither the Local Civil Rules for the
Southern District of New York, nor the stipulations and
orders set forth a briefing schedule that provide for sur-reply
Mercer's motion to strike is denied as Mercer submitted new information
in its reply brief; Pasha timely requested permission to submit a
sur-reply, notifying Mercer of his request; Pasha timely delivered his
sur-reply before the return date on the summary judgment motion; and the
Local Rules and stipulations do not prohibit the filing of a sur-reply.
Dickinson's affidavit will also be considered.